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COMMONWEALTH PENNSYLVANIA v. CHARLES J. MOBLEY (06/13/79)

decided: June 13, 1979.

COMMONWEALTH OF PENNSYLVANIA
v.
CHARLES J. MOBLEY, APPELLANT



Nos. 2 and 3 Special Transfer Docket, Appeals from Judgments of Sentence by Court of Common Pleas, Trial Division, Criminal Section, County of Philadelphia, at Nos. 1603, 1604 and 1605, November Term, 1975

COUNSEL

Carmen C. Nasuti, Philadelphia, for appellant.

Robert B. Lawler, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Hoffman, Eagen and Hess, JJ.*fn*

Author: Per Curiam

[ 267 Pa. Super. Page 31]

Charles J. Mobley, appellant, was found guilty by a jury of murder of the second degree, criminal conspiracy and robbery. From the judgments of sentence he has taken appeals.

On April 26, 1975, Mobley and one Samuel Coley entered the Temple Hardware Store in Philadelphia on the pretext of making a purchase. While Mrs. Pollack, the wife of the proprietor, was occupied with Mobley, Coley accompanied Mr. Pollack to the basement. Moments later Coley came upstairs alone and went outside the door followed immediately by Mobley. Mr. Pollack emerged from the basement covered with blood, saying "wallet, money, wallet, money." The police were called and Mr. Pollack was taken to a hospital, where he lapsed into unconsciousness and died two weeks later.

Mobley was first taken into police custody on May 20, 1975, and gave an exculpatory statement. He was released. Evidence of this statement was suppressed pre-trial for failure of the police to give Miranda warnings and on the

[ 267 Pa. Super. Page 32]

    further ground that custody had been effected without probable cause. Mobley was taken into custody for the second time on October 10, 1975, and gave an inculpatory statement. The trial court refused to suppress this statement. At trial, during the cross-examination of Mobley, the district attorney questioned him concerning the statement given to the police on May 20, 1975, evidence of which had been suppressed. This is the first assignment of error. Under Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971), this assignment of error would be devoid of merit. However, in Commonwealth v. Triplett, 462 Pa. 244, 341 A.2d 62 (1975), the Supreme Court refused to follow Harris and ruled that any statement of the defendant declared inadmissible for any reason by a suppression court cannot be used for the purpose of impeaching the credibility of the defendant who elects to testify in his own behalf at trial. The appellant argues that Triplett controls.

In our opinion Triplett does not apply for the following reasons. First, during his direct examination at trial appellant Mobley testified in substance that when he was taken into custody on May 20, 1975, he told the police the same story as to his whereabouts at the time of the crime as he testified to at trial. The purpose of the cross-examination by the district attorney as to his statement of May 20, 1975, was to show discrepancies between what he told the police on that occasion and his trial testimony. Appellant opened the door and, under these circumstances, the cross-examination was proper.

Furthermore, no error was committed because the cross-examination now challenged was admitted without objection by counsel for Mobley and it was after this cross-examination had proceeded along these lines for some time that counsel for Mobley finally objected and requested that the cross-examination be stricken from the record. The objection was sustained and there was no further reference to the statement of May 20.

Appellant also contends that the trial court erred in refusing a pre-trial motion to suppress Mobley's statement of October 10, 1975. ...


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